In cases of retroactive appraisal of the market price at the time of inheritance of inherited real estate, if the retroactive appraisal value can be deemed the market price, it shall be deemed the acquisition value of inherited real estate.

The term "market price of assets acquired by inheritance" means, in principle, an objective exchange price formed through normal transactions, but it includes an appraised price in an objective and reasonable manner, so if there is no exchange price through transactions, the reliable appraisal institution's retroactive appraisal price can also be seen as "market price."

Article 97 (Calculation of Necessary Expenses for Transfer Income)

2014Guhap21036 Revocation of Disposition of Imposing capital gains tax

HongA

The director of the tax office of Luxembourg

October 23, 2014

November 13, 2014

1. On July 10, 2013, the Defendant revoked the imposition of OOO(including additional OOO(s) on the Plaintiff for the transfer income tax for the year 2013.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. The deceased BB, the spouse of the Plaintiff, was the owner of each land and each building on the land listed in the separate sheet (hereinafter “the instant land and building”). On August 24, 2008, the Plaintiff died. On September 9, 2009, the Plaintiff completed the registration of ownership transfer in the Plaintiff’s name, each of the instant land and building based on a legacy of October 24, 2008.

B. On December 21, 2012, the Plaintiff sold the instant land and buildings to YellowCC, ED, and the largest EE to OOO on a total basis. On January 22, 2013, the Plaintiff completed the registration of ownership transfer by shares in the YellowCC, ED, and the largest EE on the instant land and buildings.

C. On March 31, 2013, the Plaintiff reported the transfer income tax base on the instant land and building: (a) on the basis of the average value of each appraisal value (hereinafter “Plaintiff’s request appraisal value”) assessed by each of the two appraisal institutions (FF appraisal corporations, GG appraisal corporations, hereinafter “FG appraisal corporations”), the transfer value of which is actual market value; and (b) the acquisition value of which is assessed by each of the two appraisal institutions (hereinafter “GG appraisal corporations”); (c) the Plaintiff voluntarily paid the Defendant the transfer income tax base by filing a return on the tax base of the capital gains tax; and (d) on the basis of the average value of each appraisal value assessed by each of the appraisal institutions (hereinafter “F appraisal corporations, GG appraisal corporations, hereinafter “GG appraisal corporations”).

D. However, the Defendant conducted an on-site investigation on the Plaintiff’s scheduled return of capital gains tax, and “the value requested by the Plaintiff, which is the acquisition value of the instant land and building reported by the Plaintiff as the tax base of capital gains tax, shall not be recognized as acquisition value on the basis of the amount assessed retroactively.” Accordingly, the acquisition value of the instant land and building is re-calculated as an OOOO based on the standard market price in 2008, which was at the time of legacy, pursuant to the standard market price in 2008, at the time of legacy, and on July 10, 2013, the Defendant additionally imposed OOO(including additional tax OOO(s) on the Plaintiff (hereinafter “instant disposition”).

E. On October 1, 2013, the Plaintiff filed an objection against the Defendant on October 1, 2013, but was dismissed on October 25, 2013. The Plaintiff filed a request for examination with the Commissioner of the National Tax Service on December 27, 2013, but the Commissioner of the National Tax Service dismissed the Plaintiff’s request on March 10, 2014.

F. Meanwhile, on the other hand, the appraiser II who belongs to HH appraisal corporation (hereinafter “the court appraiser”) which made an appraisal of the instant land and building according to the court’s entrustment for appraisal (hereinafter “court appraisal”) assessed the appraisal value (hereinafter “court appraisal value”) at the time of August 24, 2008 (the date of death of the deceased JJ) (hereinafter “the date of death of the deceasedJ”) as of August 24, 2008 as the appraisal value of the instant land and building as the OOO (=the land OOO of the instant land + the instant building OO of the instant building).

Facts that there is no dispute over the basis of recognition, Gap evidence 1 through 4 (if there is a number, including the number; hereinafter the same shall apply), Eul evidence 1 and 2, the result of the appraisal by the appraiser 2, the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

This court's appraisal value is assessed in an objective and reasonable manner and can be seen as "market price under Article 60 (2) of the Inheritance Tax and Gift Tax Act (hereinafter "the Inheritance Tax and Gift Tax Act"). Thus, the transfer income tax should be calculated on the basis of the acquisition value of the above appraisal value, and the dispositions of the first-party defendant on a different premise is unlawful.

2) The defendant's assertion

The appraisal at the request of the plaintiff and the appraisal at this court were conducted at the expiration of four years and six years from the date of donation (the request for the plaintiff) to the date of the appraisal (the above appraisal at this court). In particular, each appraiser of the above appraisal selected other factors in the appraisal of the land of this case. Since the above appraisal appraisal did not select real estate for ordinary transaction purposes, but did not select real estate for security or auction purposes and selected real estate for other factors and made correction of other factors based on it, it seems that these process had considerable influence on the calculation of objective appraisal value. Considering that some of the land of this case were combined at the time of the above appraisal, and these circumstances were likely to have affected the calculation process of appraisal value, the appraisal value calculated by each of the above appraisers cannot be deemed to have been the market value reflecting the objective exchange value of the land and buildings of this case at the time of the appraisal date, it constitutes "cases where it is difficult to calculate the market price under Article 60 (3) of the Inheritance Tax and Gift Tax Act." Therefore, the disposal of the land of this case and buildings of this case by calculating the standard market price of this case under Article 61.

B. Relevant statutes

Attached Documents

The same shall apply to the entry of statutes.

(c) Fact of recognition;

1) Each appraisal on the instant land and building

A) Appraisal by F appraisal corporations

In assessing the price at the time of October 24, 2008 after dividing the instant land into “pre-use” and “other purposes (ware site, miscellaneous land, etc.),” the F Appraisal Corporation selected the 50-2 square meters and 607 square meters and 07 square meters and 13-2 square meters and 2,112 square meters and 607 square meters and 50-2 square meters and 607 square meters of each of the above comparative standard land values as comparative standard land values (1.0282). In addition, the local factors (1.10), and individual factors (1.10, 000, 000, 0000,0000 square meters and 00,0000 won and 00,000 won and 00,000 won and 00,000 won and 00,000 won and 00,000 won and 00,000 won and 05,000.0.0.0.0.0

In assessing the price at the time of October 24, 2008 of the building of this case, the appraiser determined the cost of the new building by reflecting the revised unit price according to the incidental equipment, etc. with reference to the standard new construction unit price table in 2008, taking into account the structure, use, degree of construction, the level of finishing materials, economic characteristics, etc. of the building of this case, and then assessed the building of this case as the total OO of the building of this case after the provisional revision was made based on economic service life.

B) Appraisal by GG appraisal corporations

With regard to the appraisal of the price at the time of October 24, 2008 after dividing the instant land into “pre-use” and “other purposes (ware site, miscellaneous land, etc.), the appraiser affiliated with the GG appraisal corporation selected the price of the instant land as a comparative standard site, taking into account the land category (pre-use or substitute), specific-use area (natural green belt or detached house), road conditions ( vertical length), shape conditions, geographical location are identical or geographically similar, and geographically close, 13-2, 2, 112 square meters and 607 square meters of each of the above comparative standard land prices (1.0282), the appraiser selected the price of the instant land as a comparative standard site for the adjustment of the officially assessed value of each of the above comparative standard land prices (1.080 square meters of land, etc.) and the regional factors (1.080 square meters of land, etc.) and the individual factors (1.080 square meters of land, etc.) of the O/0800 square meters of the value of the instant land as an O/800.0.

In assessing the price at the time of October 24, 2008 of the building of this case, the appraiser determined the cost of the new building by reflecting the revised unit price according to the incidental equipment, etc. with reference to the standard new construction unit price table in 2008, taking into account the structure, use, degree of construction, the level of finishing materials, economic characteristics, etc. of the building of this case, and then assessed the building of this case as the total OO of the building of this case after the provisional revision was made based on economic service life.

C) The appraisal of this Court

In assessing the price at the time of August 24, 2008 (the date of death of the networkB) after dividing the instant land into “pre-use” and “other purposes (ware, miscellaneous land, etc.), appraiser II of this Court also selected “50-2 square meters and 607 square meters at each comparative standard place” as the comparative standard place, referring to the “price of 13-2, 112 square meters and 400 square meters at each time of construction of the instant building” and the “price of 1.00 square meters at each time of construction of the instant building” and the “price of 200 square meters at each time of construction of the instant building” referring to the “price of 200,000 square meters at each time of construction of the instant building,” and referring to the “price of 20,000,000 won at each time of construction of the instant building,” referring to the “price of 1.10,000,000 won at each time of construction of the instant building and the value of 10/5.0.0.0.0.

Facts that there is no dispute over recognition, entry of Gap's evidence 2, the result of this court's commission of appraisal to the appraiser's order II, the purport of the whole pleadings.

D. Determination

1) Determination of acquisition value to compute the gains on transfer of the instant land and buildings

A) According to Article 97(1)1 of the Income Tax Act, the acquisition value for calculating gains on transfer is based on the actual transaction value incurred in the acquisition of assets, and in cases where it is impossible to confirm the actual transaction value at the time of acquisition, there is no transaction example, appraisal value, or actual transaction value at the time of acquisition as prescribed by the Presidential Decree, and thus, there was a need to establish separate provisions on the actual transaction value at the time of acquisition. The main text of Article 163(9) of the Enforcement Decree of the Income Tax Act provides that “in cases of assets inherited or donated, the value assessed under the provisions of Articles 60 through 66 of the Inheritance Tax and Gift Tax Act as of the date of commencing the inheritance or donation shall be deemed as the actual transaction value at the time of acquisition”

Meanwhile, the main text of Article 60(1) of the Inheritance Tax and Gift Tax Act provides that "the value of an asset on which inheritance tax or gift tax is levied under this Act shall be based on the market price as of the date of commencing the inheritance or the date of donation, and Article 60(2) of the same Act provides that "the market price under the provisions of paragraph (1) shall be the value generally recognized as being established where free transactions are conducted between many and unspecified persons and shall be recognized as the market price, as prescribed by Presidential Decree, such as the expropriation price, public auction price, and appraisal price." Thus, Article 60(2) of the same Act does not limit the market price to those recognized as the market price under the conditions as prescribed by Presidential Decree, such as the expropriation price, public sale price, and appraisal price. Thus, each subparagraph of Article 49(1) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act by delegation of the above provision is merely an example of a representative case that can be deemed as the market price of inherited property (see, e.g., Supreme Court Decisions 2007Du508, Aug.

Therefore, even if the tax authority imposed capital gains tax on inherited assets based on the actual transaction value at the time of acquisition on the grounds that it is difficult to assess the market value at the time of inheritance of the relevant assets, the tax authority assessed by supplementary assessment methods on the grounds that it is also difficult to assess the market value at the time of inheritance of the relevant assets, if the market value at the time of inheritance of the relevant assets is proved by the time of closing argument in the lawsuit seeking revocation of the said taxation, the determination of illegality of taxation should be made on the basis of whether the reasonable transfer margin and the tax amount calculated by the market value exceeds the reasonable tax amount, and the "market price" in this context refers to the objective exchange price formed by normal transactions in principle. However, since the concept includes the value assessed by objective and reasonable methods, if there is no exchange price, the appraisal price at the reliable appraisal institution can be seen as the "market price," and even if the value does not change by retroactive appraisal (see, e.g., Supreme Court Decisions 204Du1834, Feb. 1, 2008; 204Du2536, Sept.

B) In light of the aforementioned legal principles, the following circumstances can be acknowledged by comprehensively taking account of the facts acknowledged as above and the purport of the entire pleadings, namely, ① the appraiser of this Court selected almost identical standards for the land in accordance with the Public Notice of Values and Appraisal of Real Estate Act, such as the land of this case, its land category, specific-use area, and current use, etc., and then evaluated the price as of the date of donation, which is the date of appraisal. ② The defendant applied the revised value to the land assessed for the purpose of auction, which is not the land actually traded as neighboring precedents in the process of going through the correction of other factors. However, even if the appraiser of this case did not find any actual sale cases of the land similar to the land of this case at the time of appraisal, it appears that the appraisal value of the land of this case, which is almost similar to the land of this case, was calculated by applying the appraisal value of this case to the appraisal value at the time of appraisal by the court’s 208 appraisal value, and thus, the appraisal value of this case was almost identical to that of this case.

C) As to this, the Defendant asserted to the effect that part of the instant land was combined on February 26, 2013, and that the land of this case was not appraised in its original form at the time of inheritance, such as the increase in land price by suffering from the development of the neighboring industrial complex after the inheritance repair. However, according to the above evidence, the appraiser of this court, in the course of appraisal and appraisal, considered that the instant land was combined after the base point of time (as a result, the unit price was differently applied to the combined land) and assessed on the basis of the standard market price on January 1, 2008, which was before the development of the surrounding area of the instant land (as to the Defendant’s assertion, the standard market price of the instant land seems to have been rapidly increased since 2012, which was completed the development of the neighboring industrial complex). Thus, this part of the Defendant’s assertion is without merit.

(ii)the calculation of a reasonable amount of tax;

If the court's appraisal value is deemed as the market price at the time of inheritance of the land and building of this case and the capital gains tax to be paid in relation to the transfer of the land and building of this case is calculated, the capital gains tax as shown in the annexed tax calculation sheet is an OOO. However, since the plaintiff has already paid OO in the preliminary return process of the capital gains tax on the land and building of this case, it is reasonable to deem that there is no tax to be additionally paid by the plaintiff, and since the capital gains tax additionally imposed on the plaintiff due to the disposition of this case is unlawful,

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.